Category Archives: Ministry of Justice

…do they turn so slowly that they’ll lead to the Lord Chancellor committing a criminal offence?

On 21 December last year, as we were all sweeping up the mince piece crumbs, removing our party hats and switching off the office lights for another year, the Information Commissioner’s Office (ICO) published, with no accompanying publicity whatsoever, an enforcement notice served on the Secretary of State for Justice. The notice drew attention to the fact that in July 2017 the Ministry of Justice (MoJ) had had a backlog of 919 subject access requests from individuals, some of which dated back to 2012. And by November 2017 that had barely improved – to 793 cases dating back to 2014.

I intended to blog about this at the time, but it’s taken me around nine months to retrieve my chin from the floor, such was the force with which it dropped.

Because we should remember that the exercise of the right of subject access is a fundamental aspect of the fundamental right to protection of personal data. Requesting access to one’s data enables one to be aware of, and verify the lawfulness of, the processing. Don’t take my word for it – look at recital 41 of the-then applicable European data protection directive, and recital 63 of the now-applicable General Data Protection Regulation (GDPR).

And bear in mind that the nature of the MoJ’s work means it often receives subject access requests from prisoners, or others who are going through or have been through the criminal justice system. I imagine that a good many of these horrendously delayed requests were from people with a genuinely-held concern, or grievance, and not just from irritants like me who are interested in data controllers’ compliance.

The notice required MoJ to comply with all the outstanding requests by 31 October 2018. Now, you might raise an eyebrow at the fact that this gave the MoJ an extra eight months to respond to requests which were already incredibly late and which should have been responded to within forty days, but what’s an extra 284 days when things have slipped a little? (*Pseuds’ corner alert* It reminds me of Larkin’s line in The Whitsun Weddings about being so late that he feels: “all sense of being in a hurry gone”).

Maybe one reason the ICO gave MoJ so long to sort things out is that enforcement notices are serious things – a failure to comply is, after all, a criminal offence punishable on indictment by an unlimited fine. So one notes with interest a recent response to a freedom of information request for the regular updates which the notice also required MoJ to provide.

This reveals that by July this year MoJ had whittled down those 793 delayed cases to 285, with none dating back further than 2016. But I’m not going to start hanging out the bunting just yet, because a) more recent cases might well be more complex (because the issues behind them will be likely to be more current, and therefore potentially more complex, and b) because they don’t flaming well deserve any bunting because this was, and remains one of the most egregious and serious compliance failures it’s been my displeasure to have seen.

And what if they don’t clear them all by 31 October? The notice gives no leeway, no get-out – if any of those requests extant at November last year remains unanswered by November this year, the Right Honourable David Gauke MP (the current incumbent of the position of Secretary of State for Justice) will, it appears, have committed a criminal offence.

Will he be prosecuted?

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

UPDATE: 29.01.15 The BBC now reports that files relating to the role of the police in the deaths of two other members of the public have apparently been “lost in the post”. This starts to look very serious. END UPDATE

I once heard a rumour that the famous lost HMRC disks of 2007 were not in fact lost after all: the person tasked with posting the disks had, so the rumour went, forgotten to do so, and when the intended recipient, the National Audit Office, had complained, had used the time-honoured excuse “they must be lost in the post”, thinking that this was better than owning up, and that no one would be particularly bothered. I have no idea whether this is true (quite possibly not – the subsequent Poynter report was comprehensive and might have been expected to flush something like that out) but what I think is interesting is that, even if it were, it would not have excused HMRC. The Data Protection Act 1998 (DPA) – which largely languished unloved at the time – requires (by virtue of the seventh principle in Schedule One) a data controller not to prevent specific instances of data loss, but, rather, to take appropriate organisational and technical measures to safeguard against such loss – a contravention of the Act lies in the failure to have these measures in place, not (necessarily) in the failure to prevent a specific incident. The fact that HMRC operated procedures which allowed the sending of huge and excessive amounts of sensitive personal data by post, without encryption measures being used, meant that HMRC were manifestly in contravention of the DPA.

Fast forward seven years or so to the present, and, we hear, the Ministry of Justice (MoJ) appear to have lost a highly sensitive computer disk in the post. The Mail on Sunday reports that

The Government has been hit by a new data security scandal after a secret file on the fatal shooting of Mark Duggan by police went missing.

A computer disk containing details of the case which triggered Britain’s worst riots in a generation is thought to have been lost in the post by the Ministry of Justice.

Details are, of course, relatively scant at the moment, but it is worth noting that there is no mention of whether the disk in question was encrypted. If it wasn’t, it would be extremely hard for the MoJ to argue that it was in compliance with its DPA obligations: the view of the Information Commissioner (ICO) is that

portable and mobile devices including magnetic media, used to store and transmit personal information, the loss of which could cause damage or distress to individuals, should be protected using approved encryption software which is designed to guard against the compromise of information.

and

where such losses occur and where encryption software has not been used to protect the data, regulatory action may be pursued.

The data protection regulatory landscape was very different in 2007, and the ICO did not then have powers to serve monetary penalty notices. A serious contravention of the DPA of a kind likely to cause substantial damage or substantial distress can now result in a “fine” of up to £500,000.

The ICO is, we are told, “examining the case”. He will, no doubt, be wanting to know not only about encryption measures, but, more simply, what procedures were in place which allowed such sensitive data to be sent by post. He will also, again no doubt, bear in mind that in recent years he has already served on the MoJ, in the last eighteen months, two monetarypenalties totalling £320,000 for not dissimilar failures to have appropriate safeguards in place to protect sensitive personal data.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

At an event on the evening of 26 November, to celebrate (slightly early) the ten year anniversary of the Freedom of Information Act 2000 (FOIA) the Minister of State for Justice and Civil Liberties, Simon Hughes, appeared to offer to take on part of the Information Commissioner’s regulatory role.

The event, hosted at the RSA by the Commissioner himself, brought together a panel of FOIA luminaries consisting of Deputy Information Commissioner Graham Smith, the BBC’s Martin Rosenbaum, Scottish Information Commissioner Rosemary Agnew and Hughes himself. In response to a question from the floor about the considerable delays and obstructiveness by certain public authorities in dealing with FOIA requests, Hughes invited people to send him examples, so that he could start to compile data on compliance (of the sort already being compiled by Agnew’s office).

Astute eyebrows at the event (and possibly on the panel) were raised: dealing with miscreant public authorities is a role clearly assigned to the Information Commissioner. For the Minister to invite complaints seems to be to risk usurping that role. One wonders if he knows what he’s let himself in for.